Posts made in April, 2013

Costs Lawyer Standards Board to go?

By on Apr 11, 2013 | 4 comments

The Legal Services Board has called on parliament to set up a single regulator for the legal services sector which would absorb all eight current frontline regulators (including the Costs Lawyer Standards Board). Iain Stark, chairman of the Association of Costs Lawyers, sensibly opposes this change and was quoted in Solicitors Journal as saying: “A one size fits all approach to regulation simply is not feasible. This is echoed by the Legal Services Act itself, which was designed with the big three regulators in mind and not the regulation of the wider legal community.” These proposed changes highlight the problems I identified back in 2010 when the ACL was deciding whether to remain a regulated profession: “Once regulated under the Act, there is no way of knowing what may be demanded in the future. Only a moment’s thought will reveal the LSB might demand almost anything at some future date. Does the ALCD really want to lock itself into a regulatory system over which it would have no control?” When put to the vote, it did. Stark goes on: “The only reason for a single regulator would be with a view to extending the net wider than simply those current authorised providers and bring into the arena the current wealth of non-regulated professions that ply their trade within the legal sector and earn a living, such as claims management companies, process servers, witness statements takers and not forgetting law costs draftsmen.” I’m not sure I entirely follow the logic of that. If one believes that all those working in legal costs should be regulated (itself a highly questionable proposition) there seems no reason why this should not be done by a dedicated regulator. It would be one size fits all for those in costs but not one size for all those doing anything remotely connected with the...

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Form N258

By on Apr 10, 2013 | 7 comments

The other day I mentioned that with the introduction of the new form N258 – Request for Provisional/Detailed Assessment it appeared the old form N258 had been renumbered D258. However, as a reader pointed out: “I thought D258 was for family cases. Hence Applicant/ Petitioner/ Respondent appearing in the headings in the top right of the form.” Re-reading the forms I think that must be right. It therefore appears that the old N258 has been entirely replaced by the new one. That would not be a problem if those preparing the form had read the new rules properly. The new form appears to require one of two options to be ticked: “I confirm the costs claimed are £75,000 or less and I ask the court to undertake a provisional assessment.” or “I confirm the costs claimed are over £75,000 and I ask the court to arrange a detailed assessment hearing.” The transitional provision dealing with the new Provisional Assessment scheme states at CPR 47.15(1): “This rule applies to any detailed assessment proceedings commenced in the High Court or a county court on or after 1 April 2013”. As the majority of detailed assessment hearings that will be requested over the next few months will relate to claims where the costs are under £75,000 but detailed assessment proceedings were commenced (ie an N252 was served) before 1 April 2013, and so provisional assessment does not apply, the new form is not currently fit for purpose in the majority of cases....

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Motto v Trafigura – Funding costs

By on Apr 9, 2013 | 16 comments

I continue to see, on a virtually daily basis, claims for costs that include work relating to funding, notwithstanding the clear judgment from the Court of Appeal. The last time I mentioned this, readers replied with comments such as: “Clients won’t let me leave it out” and “Why do the Defendant’s job for them? Keep it in I say.” Now when I see bills including this type of claim, I raise a standard dispute along the following lines: “It is noted that work is claimed relating to funding (eg items x and y) despite clear Court of Appeal authority from 2011 (see paragraphs 108, 114 and 145(vii) of Motto v Trafigura Ltd [2011] EWCA Civ 1150) that such work is not recoverable. It is clear that those responsible for drafting the Bill and checking the same are not aware of the distinction between recoverable and irrecoverable work and it is anticipated that other non-chargeable attendance time and routine communications with the Claimant have been included. The Defendant, adopting a broad-brush approach, offers x% of the attendance time and routine communications claimed. If the same is not accepted the Court will be asked to determine the recoverability of each and every item claimed and the Defendant will request that the cost of this task be paid by the Claimant in any event.” Oh, and don’t expect to recover above Grade D rates for drafting your bill where you get the basics...

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25% cap on damages in CFAs

By on Apr 8, 2013 | 1 comment

It was previously understood that the 25% cap on damages, excluding damages for future care and loss, that can be taken from clients in personal injury claims would include any success fee charged by a barrister also acting under a CFA. This would, in theory, have avoided the situation where the client might lose 75% of their damages if there was a solicitor, junior and leading counsel all acting under CFAs. The new Law Society Model CFA includes, what is presumably intended to be (as it is in square brackets) an optional clause: “The maximum limit includes any success fee payable to a barrister who has a CFA with us.” but does not explain how such a cap would be split with counsel and it would be interesting to see how the CFA with the barrister would be drafted to govern this. However, now we have the Conditional Fee Agreements Order 2013 which contains no such restriction. When read in conjunction with the Courts and Legal Services Act 1990 (as amended) the 25% cap simply applies to “a conditional fee agreement”. There is therefore nothing to stop a client losing 75% of their damages in the situation given above. Indeed, the Order does not even achieve the aim of limiting the amount any given legal representative can charge. There appears to be nothing to stop a firm of solicitors entering into one CFA that covers pre-issue work, a second CFA to cover work from the date of issue to the date of listing for trial and a third CFA to cover the period from listing to trial, with each having the 25% cap. If you then add in junior and senior counsel you could have a client liable to pay out 125% of their damages by way of success fee. So much for consumer protection if that is what the Order was designed to...

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Preparing for a provisional assessment

By on Apr 5, 2013 | 12 comments

Provisional assessment is meant to take place without the judge undertaking the assessment seeing the receiving party’s file of papers. The Senior Courts Costs Office has apparently recognised that this is costs cuckoo land and will be requiring receiving parties to file their full papers in all cases (a requirement the court is permitted to impose under the rules). At first blush this is a step that both paying and receiving parties will welcome. However, there is a sting in the tail for receiving parties. Costs Judges and Costs Officers are not going to have the time to wade through a box or boxes of jumbled papers looking for a copy of an advice from counsel or a relevant attendance note. It will be essential to ensure the papers lodged with the Court are in apple pie order. This probably means all relevant papers need to be fully bundled, indexed and paginated. This will be a time consuming task for bills of up to £75,000. The more challenges made the more papers need to be carefully identified in the index so the judge can quickly locate the item. All this extra work comes out of the £1,500 maximum costs recoverable for the provisional assessment...

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